Eighty-second Legislature

First Regular Session

Held at Charleston

Published by the Clerk of the House

West Virginia Legislature

JOURNAL

of the

House of Delegates

The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Tim Armstead, Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Friday, February 20, 2015, being the first order of business, when the further reading thereof was dispensed with and the same approved.

Delegate Hamilton, Chair of the Committee on Agriculture and Natural Resources, submitted the following report, which was received:

Your Committee on Agriculture and Natural Resources has had under consideration:

H. B. 2730, Updating unlawful methods of bear hunting and clarifying the process for bear damage claims,

And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on the Judiciary.

In accordance with the former direction of the Speaker, the bill (H. B. 2730) was referred to the Committee on the Judiciary.

On motion for leave, a bill was introduced (Originating in the Committee on Agriculture and Natural Resources and reported with the recommendation that it do pass), which was read by its title, as follows:

By Delegates A. Evans, Hamilton, Folk, Lynch, Williams, R. Smith, Canterbury, Lynch, Romine and Ambler:

H. B. 2888 - “A Bill to amend and reenact §19-9-34 of the Code of West Virginia, 1931, as amended, relating to allowing the use of rotary drum composters to destroy or dispose of the carcass of any animal to prevent the spread of disease.”

The Clerk of the Senate, announced that the Senate had passed, with a title amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 2010, Requiring the elections of justices of the West Virginia Supreme Court of Appeals, circuit court judges, family court judges and magistrates be nonpartisan and by division.

On motion of Delegate Cowles, the bill was taken up for immediate consideration.

Com. Sub. for H. B. 2010 - “A Bill to amend and reenact §3-1-16 and §3-1-17 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-4A-11a of said code; to amend and reenact §3-5-4 of said code; to amend said code by adding thereto four new sections, designated §3-5-6a, §3-5-6b, §3-5-6c and §3-5-6d; to amend and reenact §3-5-7, §3-5-13 and §3-5-13a of said code; to amend and reenact §3-10-3 of said code; to amend and reenact §3-12-3, §3-12-6, §3-12-10, §3-12-11, §3-12-12 and §3-12-14 of said code; to amend and reenact §6-5-1 of said code; to amend and reenact §50-1-1 and §50-1-6 of said code; to amend and reenact §51-1-1 of said code; and to amend and reenact §51-2A-5 of said code, all relating to electoral reforms of the West Virginia judiciary generally; requiring the election of justices of the Supreme Court of Appeals, circuit court judges, family court judges and magistrates be on a nonpartisan basis; requiring that elections to certain offices be on a division basis when more than one justice of the Supreme Court of Appeals, circuit judge, family court judge or magistrate is to be elected; providing for the timing and frequency of election; providing for the commencement of terms of office; establishing ballot design and printing; providing that elections for justice of the Supreme Court of Appeals, circuit judge, family court judge or magistrate are to be held on the same date as the primary election; requiring nonpartisan ballots be used; establishing filing announcement of candidacies, including the timing, location and information necessary thereto; providing for the order of appearance of offices on the ballot; establishing ballot content; providing the procedures for the filling of vacancies in the offices of justices of the Supreme Court of Appeals, circuit judge, family court judge or magistrate; providing occasions for special elections to be held to fill vacancies; providing that unsuccessful nonpartisan candidates can be selected to fill ballot vacancies in a general election; providing the timing of commencement of the terms of offices of justices of the Supreme Court of Appeals, circuit judge, family court judge or magistrate; and providing for the continuing applicability of the West Virginia Supreme Court of Appeals Public Campaign Financing Program.”

On motion of Delegate Cowles, the House of Delegates concurred in the Senate amendment.

On the passage of the bill, the yeas and nays were taken (Roll No. 164), and there were--yeas 89, nays 7, absent and not voting 4, with the nays and absent and not voting being as follows:

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2010) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Delegates Walters, Cowles and Hanshaw offered the following resolution, which was read by its title and referred to the Committee on the Judiciary then Rules:

H. C. R. 84 - “Requesting the Joint Committee on Government and Finance study the magistrate court cost collection process and make recommendations to improve the same.”

Whereas, Various state agencies and counties rely on the receipt of funds generated by magistrate court costs; and

Whereas, The failure to collect magistrate court costs and fees have a negative effect, particularly on the bond repayment for the Regional Jail and Correctional Facility Authority; and

Whereas, Methods of enforcing collection of delinquent costs owed to the magistrate court funds have improved; and

Whereas, It would be beneficial to West Virginia, the Regional Jail and Correctional Facility Authority and the various county governments if the collection of delinquent magistrate court costs were improved; therefore, be it

That the Joint Committee on Government and Finance is hereby requested to study the magistrate court cost collection process and make recommendations to improve the same; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2016, on its findings, conclusions and recommendations, together with drafts of any rules or legislation necessary to effectuate its recommendations, including drafts of naming criteria; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Delegates J. Nelson, Ambler, Blair, Butler, Cooper, Espinosa, Ferro, Fluharty, Folk, Hill, Ireland, Kessinger, Kurcaba, Manchin, Marcum, McGeehan, Miley, Moore, Moye, O’Neal, Perdue, Perry, Pethtel, R. Phillips, Rohrbach, Rowan, R. Smith, Sobonya, Sponaugle, Statler, Upson, Wagner, Walters, Westfall, H. White, Williams and Zatezalo offered the following resolution, which was read by its title and referred to the Committee on Roads and Transportation then Rules:

H. C. R. 85 - “Requesting the Division of Highways to name a future bridge, 03-3/14-0.10 (design # 11082) (38.09778, -81.61498), carrying county route 3/14 over Big Coal River in Boone County, the ‘U.S. Navy MM2 Carl E. Keeney and U.S. Army PFC Carl M. Nicholas Memorial Bridge’.”

Whereas, Carl Eugene Keeney was born to Dewey and Ruth Skeens Keeney on March 27, 1925, in Seth, West Virginia. He learned to repair engines and vehicles at an early age and became skilled as a machinist. When this country sought skilled tradesmen in its Armed Forces, he enlisted in the United States Navy in 1942, eventually attaining the rating of Machinist's Mate - Second Class. Machinist's Mate Keeney served over three years in the Pacific Theater and saw combat in the Solomon Islands and at Okinawa. He was awarded three battle stars before he was honorably discharged in 1946. Thereafter, Carl E. Keeney applied his machinist's skills in the coal industry, working as a driver, mechanic and machinist in Boone County until his retirement; and

Whereas, Carl M. Nicholas was born to Dan and Frona Cottrell Nicholas on September 27, 1922, in Bickmore, West Virginia. Though he left school after eight years to help support his family, he became quite accomplished in a mining career that spanned five decades in the coalfields of southern West Virginia. He answered his nation’s call to service, joining the United States Army in World War II in the European Theater of Operations. He participated in the Invasion of Normandy on D-Day and in the Battle of the Bulge. He also received and survived bullet wounds from a German sniper, for which he was awarded the Purple Heart. Upon his return to civilian life, he continued his mining career with some of the most prominent companies in the industry and he became a successful businessman as proprietor of his own trucking company. He continued to support military veterans and was a leader of the effort to secure dedicated parking for veterans at our State Capitol. After a life well lived in service to his community and his country, Carl M. Nicholas passed away on September 3, 2014; and

Whereas, It is an appropriate recognition of their contributions to their country, state, community and Boone County to name a bridge over the Big Coal River in their honor; therefore, be it

That the Division of Highways is hereby requested to name the future bridge, 03-3/14-0.10 (design # 11082) (38.09778, -81.61498), carrying county route 3/14 over Big Coal River in Boone County, the “U.S. Navy MM2 Carl E. Keeney and U.S. Army PFC Carl M. Nicholas Memorial Bridge”; and, be it

Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the “U.S. Navy MM2 Carl E. Keeney and U.S. Army PFC Carl M. Nicholas Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of the Department of Transportation and to the families of each of these honored veterans.

On motions for leave, bills were introduced, read by their titles, and severally referred as follows:

By Delegates Arvon, Fast, Kessinger, Azinger, Butler, Moye, R. Phillips, Hamrick, Border, Canterbury and Perry:

H. B. 2881 - “A Bill to amend the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5B-4-1, §5B-4-2, §5B-4-3, §5B-4-4 and §5B-4-5, all relating to creating the West Virginia Intrastate Commerce Improvement Act; and ensuring that businesses, organizations and employers doing business in West Virginia are subject to uniform nondiscrimination laws and obligations”; to the Committee on Government Organization.

H. B. 2882 - “A Bill to amend and reenact §50-1-2 of the Code of West Virginia, 1931, as amended, relating to increasing the number of magistrates in Monongalia County by one”; to the Committee on Political Subdivisions then the Judiciary.

By Delegates Boggs, Manchin, Longstreth, Folk, Canterbury, Rowan, Perry, Pethtel, Ferro, Lane and A. Evans:

H. B. 2883 - “A Bill to amend and reenact §24-3-1b of the Code of West Virginia, 1931, as amended, relating to requiring, for safety reasons, minimum personnel of two on certain trains”; to the Committee on Industry and Labor then the Judiciary.

H. B. 2884 - “A Bill to amend and reenact §18B-1D-9 of the Code of West Virginia, 1931, as amended, relating to modifying training and development requirement for certain members of Higher Education Policy Commission, council for community and technical college education and institutional governing boards”; to the Committee on Education.

H. B. 2885 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §47-12-1, §47-12-2, §47-12-3, §47-12-4, §47-12-5, §47-12-6 and§47-12-7, all relating to the Youth Mental Health Protection Act; legislative findings; purpose; definitions; prohibition on conversion therapy; referral services; and discipline”; to the Committee on Health and Human Resources then the Judiciary.

H. B. 2886 - “A Bill to amend and reenact §46A-6-107 of the Code of West Virginia, 1931, as amended, relating to conditions under which used manufactured homes may be sold with warranty exclusions, limitations or modifications; allowing used manufactured homes to be sold with warranty limitations; allowing a waiver of warranties of particular defects disclosed in writing; establishing conditions permitting ‘as is’ sales of used manufactured homes; and requiring conspicuous disclosure of ‘as is’ sale conditions”; to the Committee on the Judiciary.

By Delegates Ellington, Gearheart, Border, Ambler, Cooper, Shott, Overington, Householder, Butler, R. Phillips and E. Nelson:

H. B. 2887 - “A Bill to amend and reenact §17B-2-3a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §33-6-38, all relating to Division of Motor Vehicles instructional permits requirements; drug testing for a level two intermediate driver’s license; possible insurance premium reduction”; to the Committee on Health and Human Resources then the Judiciary.

H. C. R. 83, Requesting the Joint Committee on Government and Finance to study the needs, challenges, and issues facing municipalities in this state as to the funding of their police and firefighter pension plans; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Third ReadingCom. Sub. for H. B. 2562, Relating to sales tax increment financing; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.

Delegate Sponaugle moved to amend the bill on page six, section seven-a, lines sixty-five through seventy, by striking out “On the first day of each fiscal year, any monthly deficiencies for an economic opportunity development district remaining from the prior fiscal year shall be discharged and shall not be taken into consideration by the State Treasurer when the monthly deposits are made to the General Revenue Fund pursuant to this section.”

During the debate on the amendment, Members were discussing the merits of the bill. The Speaker reminded the Members to confine their remarks to the amendment.

On the adoption of the amendment, Delegate Sponaugle demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 165), and there were--yeas 31, nays 63, absent and not voting 6, with the yeas and absent and not voting being as follows:

Yeas: Anderson, Bates, Byrd, Campbell, Caputo, Eldridge, Ferro, Fluharty, Folk, Guthrie, Hicks, Hornbuckle, Longstreth, Lynch, Manchin, Marcum, Morgan, Moye, Perdue, Perry, L. Phillips, Pushkin, Reynolds, Rodighiero, Rohrbach, Skinner, P. Smith, Sponaugle, Trecost, H. White and Williams.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.

Having been engrossed, the bill was then read a third time and put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 166), and there were--yeas 75, nays 20, absent and not voting 5, with the nays and absent and not voting being as follows:

Nays: Bates, Byrd, Eldridge, Faircloth, Folk, Guthrie, Ihle, Lynch, Marcum, McGeehan, Moffatt, J. Nelson, Perdue, Perry, Pushkin, Reynolds, Rodighiero, P. Smith, Sponaugle and H. White.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2562) passed.

H. B. 2770, Making a supplementary appropriation from the State Fund, State Excess Lottery Revenue Fund, to the Division of Human Services; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 167), and there were--yeas 93, nays 1, absent and not voting 6, with the nays and absent and not voting being as follows:

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2770) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for H. B. 2562, Relating to sales tax increment financing; still being in possession of the Clerk, the bill was taken up for further consideration.

On this question, the yeas and nays were taken (Roll No. 169), and there were--yeas 79, nays 12, absent and not voting 9, with the nays and absent and not voting being as follows:

Nays: Eldridge, Faircloth, Folk, Guthrie, Ihle, Marcum, Moffatt, Pushkin, Reynolds, Rodighiero, P. Smith and Sponaugle.

Absent and Not Voting: Boggs, Deem, Hartman, Lane, Moore, Pasdon, Perdue, Rowe and Weld.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2562) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Second ReadingCom. Sub. for H. B. 2457, Prohibiting the use of the name or likeness of elected or appointed officials on publicly-owned vehicles; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Com. Sub. for H. B. 2493, Relating to requirements for insurance policies and contracts providing accident and sickness insurance or direct health care services that cover anti-cancer medications; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Cowles, and by unanimous consent, the bill was advanced to third reading with amendments pending and the restricted right to amend jointly by Delegates Ellington and Eldridge, and the rule was suspended to permit the consideration of the amendments on that reading.

H. B. 2615, West Virginia Small Business Capital Act; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Small Business, Entrepreneurship and Economic Development, was reported by the Clerk and adopted, amending the bill as follows:

On page three, subdivision four, line eleven, after the word “entity” and the semicolon, by inserting the word “and”.

On page three, subsection (c), line eight, after the word “than”, by striking out“$25,000” and inserting “$10,000”.

On page four, subsection (h), line twenty-six, after the words “sale of”, by striking out the words “the twenty-fifth security” and inserting in lieu thereof the words “securities to the twenty-fifth person”.

On page four, subsection (h), line twenty-nine, after the word “agent” and the period, by inserting the following:

“When the Secretary of State receives a Notice of Issuer, he or she shall promptly forward a copy of it to the auditor of the State of West Virginia.”

On page four, after subsection (h), following line two, by inserting two new sections to read as follows:

Notwithstanding the provisions of section five hundred two of this article, an issuer under this article shall be subject to the provisions of sections four hundred four, four hundred nine and four hundred ten of article four of this chapter.”

Notwithstanding the provisions of this article, nothing in this exemption shall be construed to alleviate any person from the anti-fraud provisions of articles one, two, three or four of this chapter.”

Com. Sub. for H. B. 2648, Allowing authorized entities to maintain a stock of epinephrine auto-injectors to be used for emergency; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Com. Sub. for H. B. 2662, Eye Care Consumer Protection Law; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

H. B. 2733, Removing certain combinations of drugs containing hydrocodone from Schedule III of the controlled substances law; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Health and Human Resources, was reported by the Clerk and adopted, amending the bill on page twenty-three, line one hundred eighty-three, by restoring the stricken word “or” and removing the underscored words “or V”.

H. B. 2879, Relating to certain limitations on amount of state funds on deposit in any depository; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

First ReadingThe following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

S. B. 238, Limiting certain county board of education liability arising from unorganized recreation,

Com. Sub. for H. B. 2240, Providing that an act of domestic violence or sexual offense by strangling is an aggravated felony offense,

Com. Sub. for H. B. 2283, Authorizing the Department of Environmental Protection to promulgate legislative rules,

H. B. 2627, Providing protection against property crimes committed against coal mines, utilities and other industrial facilities,

Com. Sub. for H. B. 2674, Making home schooled students eligible for a Promise scholarship without taking the GED test,

Com. Sub. for H. B. 2718, Transferring funds remaining in the Racetrack Modernization Fund to the State Road Fund and closing the Racetrack Modernization Fund,

Com. Sub. for H. B. 2755, Relating to service and professional employee positions at jointly established schools,

Com. Sub. for H. B. 2773, Relating to the West Virginia Film Industry Investment tax credit,

H. B. 2880, Creating an addiction treatment pilot program; on first reading, coming up in regular order, was, at the request of Delegate Cowles, and by unanimous consent, laid over one day, retaining its place on the calendar.

Delegate Byrd noted to the Clerk that he was absent when the vote was taken on Roll. No. 164, and that had he been present, he would have voted “Yea” thereon.

Delegates A. Evans, Hamilton and Romine announced that they were absent when the votes were taken on Roll Nos. 124 through 163, and that had they been present, they would have voted “Yea” thereon.

At the request of Delegate Cowles, and by unanimous consent, the House of Delegates returned to further consideration of H. B. 2755.

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, H. B. 2775 was mistakenly displayed on the voting board and the roll was taken (Roll No. 170).

Following consultation with the Clerk, the correct bill number was displayed and the Speaker again stated the motion before the House, and on this question, the yeas and nays were taken (Roll No. 171), and there were--yeas 70, nays 22, absent and not voting 8, with the nays and absent and not voting being as follows:

Nays: Bates, Byrd, Eldridge, Faircloth, Fast, Fluharty, Folk, Gearheart, Hamilton, Hicks, Hornbuckle, Howell, Ihle, Kurcaba, Marcum, McGeehan, Moffatt, J. Nelson, Reynolds, Rodighiero, Storch and H. White.

Absent and Not Voting: Boggs, Hartman, Lane, Moore, Perdue, Rowe, Westfall and Williams.

So, four fifths of the members present not having voted in the affirmative, the constitutional rule was not dispensed with.

At the request of Delegate Cowles, and by unanimous consent, leaves of absence for the day were granted Delegates Boggs, Hartman and Moore.

The Speaker stated that the Roll call to suspend the constitutional rule was taken in error, and that the correct bill had subsequently been acted on by the House, and that the status of H. B. 2775 was unchanged.

Delegate Marcum asked and obtained unanimous consent that the remarks of Delegate Deem regarding recent newspaper articles about the Legislature be printed in the Appendix to the Journal.

At 1:23 p.m., on motion of Delegate Cowles, the House of Delegates recessed until 6:00 p.m.

At the request of Delegate Cowles and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.

Delegate Howell, Chair of the Committee on Government Organization, submitted the following report, which was received:

H. B. 2237, Prohibiting project labor agreements on state-funded construction contracts,

And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on Finance.

In accordance with the former direction of the Speaker, the bill (H. B. 2237) was referred to the Committee on Finance.

Delegate Howell, Chair of the Committee on Government Organization, submitted the following report, which was received:

And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on the Judiciary.

In accordance with the former direction of the Speaker, the bill (S. B. 412) was referred to the Committee on the Judiciary.

Delegate Howell, Chair of the Committee on Government Organization, submitted the following report, which was received:

And reports the same back, with amendment, with the recommendation that they each do pass, as amended.

Delegate Nelson, Chair of the Committee on Finance, submitted the following report, which was received:

H. B. 2657, Allowing members of the Livestock Care Standards Board to be reimbursed for expenses consistent with the West Virginia Department of Agriculture Travel Policy and Procedure,

S. B. 398, Extending expiration date for health care provider tax on eligible acute care hospitals,

On motion for leave, a bill was introduced (Originating in the Committee on Finance and reported with the recommendation that it do pass), which was read by its title, as follows:

By Delegates E. Nelson, Anderson, Canterbury, Espinosa, Frich, Hamilton, Westfall, Moye and Williams:

H. B. 2933 - “A Bill making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Department of Administration, Public Defender Services, fund 0226, fiscal year 2015, organization 0221, by supplementing and amending the appropriations for the fiscal year ending June 30, 2015.”

Delegate Nelson, Chair of the Committee on Finance, submitted the following report, which was received: